IN RE: David MONTALVO

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: David MONTALVO, Appellant, v. NEW YORK STATE BOARD OF PAROLE, Respondent.

Decided: April 24, 2008

Before:  SPAIN, J.P., CARPINELLO, MALONE JR., KAVANAGH and STEIN, JJ. David Montalvo, Woodbourne, appellant pro se. Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), for respondent.

Appeal from a judgment of the Supreme Court (McNamara, J.), entered November 9, 2007 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying his request for parole release.

In 1992, petitioner was convicted upon his plea of guilty of manslaughter in the first degree and reckless endangerment in the first degree and sentenced to an aggregate prison term of 10 1/313 to 31 years.   In September 2006, petitioner made his third appearance before respondent and his request for parole release was denied.   Petitioner thereafter commenced this CPLR article 78 proceeding challenging that determination.   Following joinder of issue, Supreme Court dismissed the petition, prompting this appeal.

Contrary to petitioner's contentions, respondent considered the appropriate statutory factors in denying his request for parole release (see Executive Law § 259-i).   The record reflects that, in addition to the nature and seriousness of the instant offense, in which petitioner shot and killed a young man during a group altercation, respondent also considered petitioner's exemplary institutional, academic and disciplinary record, his lack of a criminal history, his positive family and community support, and potential employment opportunities (see Executive Law § 259-i).   However, respondent was not required to give each factor equal weight (see Matter of Martin v. New York State Div. of Parole, 47 A.D.3d 1152, 1152, 851 N.Y.S.2d 664 [2008] ) and was free to place emphasis on the seriousness of the instant offense.   As it cannot be said that respondent's decision to deny petitioner's request for parole release was affected by “ ‘irrationality bordering on impropriety’ ” (Matter of Silmon v. Travis, 95 N.Y.2d 470, 476, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000], quoting Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 77, 427 N.Y.S.2d 982, 405 N.E.2d 225 [1980] ), it will not be disturbed (see Matter of Cruz v. New York State Div. of Parole, 39 A.D.3d 1060, 1062, 833 N.Y.S.2d 311 [2007] ).

Petitioner's remaining contentions have been considered and determined to be without merit.

ORDERED that the judgment is affirmed, without costs.

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